Poverty Law 1Appeals and Hearings,

Adjunct Professor Monica Bogucki, 2013 copyright Monica Bogucki

Poverty Law 1Appeals and Hearings,

Adjunct Professor Monica Bogucki, 2013 copyright Monica Bogucki

Appeals and HearingsDepartment of Human Services Appeals

▪Who can appeal?▪Applicant▪Participant▪Former Participant▪Minn. Stat. 256J.40

What can be appealed

▪Unfavorable Inaction i.e. delay in processing applications▪Sanctions▪Overpayments▪Unfavorable Action, reductions, suspensions,

terminations, and denials▪Use of vendor payments

▪ Minn. Stat. 256J.40

What kinds of programs are covered under the DHS appeal

process?

▪MFIP-S ▪Food Stamps▪Medical Assistance▪General Assistance▪Social Service appeals, ..... Minn.Stat. 256J.40,

256.045

Programs covered under the appeal process

continued

▪Minnesota Supplemental Aid▪Other Health Care- Minnesota Care▪Emergency Assistance,....▪Administrative Disqualification Hearings▪Minn. Stat. 256.045, 256.046

State District Court

Commissioner

Human Services Judge

State Appellate Court

County’s Responsibility to give notice

County agency MUST give participant WRITTEN notice of all adverse actions affecting the participant

▪Must state:▪Reasons for action: Legal basis and Factual basis▪Participant’s right to appeal the action▪Tell about the continued benefits pending appeal▪Mail to last known address

What are continued benefits pending

appeal?

▪What are the benefits to the client?▪What are the disadvantages to the client?▪Minn. Stat.256.045 subd. 10 and 256J.40,

How do you appeal?

What constitutes an appeal?

▪Written request for hearing to state agency within 30 days after receiving written notice of the action, decision, or final disposition, or within 90 days if one can show good cause.

Expedited Appeals for Emergency Assistance or

other Urgent Matters

▪County has a duty to promptly make a decision to resolve the emergency, Minn. Stat. 256.0451 subd.6

▪Agency summary must be issued within two days of receiving the request

Expedited Appeal ▪ Expedited hearing▪ Must issue decision at earliest date to

resolve emergency▪ Commissioner must issue decision within 5

days of recommended decision

Fair Hearing Process

▪Based on Goldberg v. Kelly, 397 U.S. 254 (1970)▪This case established the fair hearing process▪It has subsequently been adopted through federal

regulations, state statutes

Pre-hearing conferences

▪Client is entitled to pre-hearing conferences▪Minn. Stat. 256.0451 subd. 5▪What is the purpose of a pre-hearing

conference?

Appeal Agency Summaries

• Minn. Stat. 256.0451 subd. 3 • State facts, legal basis and attach

exhibits• Appellant must receive at least

three working days before the date of the hearing

• Request continuance if not timely

Interpreter• Interpreter, Minn. Stat. 256.0451,

subd. 12• Human Services Judge has a duty

to inquire and determine if participant needs an interpreter

• If interpreter is needed, hearing must be continued

Ex parte Contact• No Ex parte Contact, Minn. Stat.

256.0451, subd. 9 • Human Services Judge shall not

have ex parte contact on substantive issues with the agency, any person or witness

• Interactive Video Technology vs. face-to-face hearing Minn. Stat. 256.0451 subd. 10

• Right to face-to-face hearing• If the appellant or witness has a physical or

mental disability that would impair their ability to fully participate in a hearing, then the hearing must be in person. Minn. Stat. 156.045 subd. 4

Access to files• Access to files• Right to complete file• Right to a free file• Minn. Stat. 256.0451, subd. 2

What happens at a hearing?

▪Informal▪Record is kept by a tape recording▪Referee, Usually in person hearing but can be a

telephone hearing▪impartial decision maker▪Hearsay is allowed▪Subpoena

Client right to reimbursement of some

expenses• Minn. Stat. 256J.40, MFIP• Child care• Transportation• Other reasonable and necessary

expenses• Also includes witnesses

County has a duty to reasonably accommodate

clients

▪American with Disabilities Act▪Rehabilitation Act of 1973

Examples

▪ Ann is 34 years old and has a severe mental health condition. She is living by herself and recently applied for general assistance program. Ann’s mental health diagnosis is manic depression. She has serious mood swings. She is currently very depressed and unable to get the application and verification completed in time. .

Example continued

▪The county has denied her application for lack of verification from her employer. The county financial worker did not offer any assistance to Ann. Ann missed her 30 day appeal deadline by the time she came to your legal office. Please give Ann advice.

Dan is a single parent receiving MFIP benefits.

He has a one-year-old child. Dan received the following notice in the

mail.

▪September 19, 2012▪Dan Johnson▪1234 34th Avenue South▪Minneapolis, MN 55404

▪Dear Mr. Johnson,▪Your MFIP benefits are being terminated on October 1,

2012. We are terminating your benefits because you did not give use the proper verification.

▪Sincerely, ▪Ms. Jones, Financial Worker

Beth and her two children are receiving MFIP-S benefits. On

Sept. 3rd, Beth received a notice saying her MFIP benefits would be terminated on October 1st.

On September 6th, Beth appealed her termination of

MFIP benefits.

Beth forgot to put in her appeal that she wanted

continued benefits pending appeal. Beth

didn’t receive her October grant. Please give her

legal advice.

Fraud Issues• Civil Issues, Overpayment• Administrative Disqualification

Hearings, Minn. Stat. 256.046• Criminal Action, Minn. Stat.

256.98, Wrongfully Obtaining Public Assistance

Tennessen WarningMinn. Stat. 13.04

• (a) the purpose and intended use of the requested data within the collecting government entity;

• (b) whether the individual may refuse or is legally required to supply the requested data;

• (c) any known consequence arising from supplying or refusing to supply private or confidential data; and

• (d) the identity of other persons or entities authorized by state or federal law to receive the data.

• Minnesota Government Data Practices Act

Reconsideration• Person seeking reconsideration

has the burden to demonstrate why the matter should be reconsidered.

• Minn. Stat. 256.045, subd. 5